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Manual for the Negotiation of Bilateral Tax Treaties

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Manual for the Negotiation of Bilateral Tax Treaties United Nations United Nations Manual for the Negotiation of Bilateral Tax Treaties Treaties Tax the Negotiation of Bilateral for Manual Manual for the Negotiation of Bilateral Tax Treaties between Developed and Developing Countries between Developed and Developing Countries United Nations Manual for the Negotiation of Bilateral Tax Treaties between Developed and Developing Countries asdf United Nations New York, 2016 Copyright © June 2016 For further information, please contact: United Nations United Nations All rights reserved Department of Economic and Social Affairs Financing for Development Office United Nations Secretariat Two UN Plaza, Room DC2-2170 New York, N.Y. 10017, USA Tel: (1-212) 963-7633 • Fax: (1-212) 963-0443 E-mail: [email protected] Preface Domestic resource mobilization, including tax revenues, is central to achieving sustainable development. Taxes represent a stable source of finance that, complemented by other sources, is critical to financing the 2030 Agenda for Sustainable Development, including the Sustainable Development Goals (SDGs). Taxation is essential to providing public goods and services, increasing equity and helping manage macroeco- nomic stability. SDG 17 on the means of implementation and global partnership for sustainable development calls on the international community to strengthen domestic resource mobilization, including through international support to developing countries, to improve domestic capacity for tax and other revenue collection. Mobilizing domestic public revenue for investment in sus- tainable development has featured prominently on the financing for development agenda since the 1990s. The Addis Ababa Action Agenda (AAAA) of the Third International Conference on Financing for Development (Addis Ababa, 13 – 16 July 2015) provides a new global framework for financing sustainable development by aligning all financial flows and policies with economic, social and environmental priorities. The AAAA, with its more than 100 concrete actions and commitments that Member States of the United Nations have pledged to undertake, highlights the need to strengthen tax administration, implement policies to generate additional resources, and combat corruption and illicit financial flows. Recognizing the limits to what individual Governments can accomplish in a globalized economy, it further calls for increased capacity-building and strengthened inter- national tax cooperation. The AAAA stresses that efforts in international tax coopera- tion should be universal in approach and scope and should fully take into account the different needs and capacities of all countries. While many countries have made improvements in their tax administrations in recent years, establishing and maintaining a sustainable source of revenues to fund domestic expenditures remain a challenge for many developing countries. Significant gaps persist in the capacities of developed and developing countries to raise public financial resources, including through modernized tax systems, improved tax policy and iii Manual for the Negotiation of Bilateral Tax Treaties efficient tax collection, as well as through combating tax evasion and tax avoidance. It is important to support national efforts of developing countries by providing technical assistance and enhancing interna- tional tax cooperation. Tax treaties play a key role in international cooperation on tax matters. On the one hand, they encourage both investment by reducing tax barriers, including double taxation, and the transfer of skills and technology; on the other, they seek to reduce cross-border tax avoid- ance and evasion through exchange of tax information and mutual assistance in the collection of taxes. Tax treaties can benefit both devel- oped and developing countries. However, developing countries, espe- cially the least developed among them, often lack the adequate skills and experience to effectively negotiate and administer tax treaties that encourage international investments while protecting their tax base. The present publication, entitledUnited Nations Manual for the Negotiation of Bilateral Tax Treaties between Developed and Developing Countries, seeks to contribute to strengthening the technical expertise of tax officials in developing countries. It provides practical guidance to treaty negotiators in developing countries, in particular those who use the United Nations Model Double Taxation Convention between Developed and Developing Countries. 1 We see this Manual as an important contribution to the implementation of the AAAA and hope that it will serve as a useful and relevant tool in assisting developing countries to foster their sustainable development efforts. Alexander Trepelkov Director, Financing for Development Office Department of Economic and Social Affairs 1 United Nations, Department of Economic and Social Affairs,United Nations Model Double Taxation Convention between Developed and Develop- ing Countries (United Nations publication, Sales No. 12.XVI.1). Available at http://www.un.org/esa/ffd/documents/UN_Model_2011_Update.pdf. iv Introduction Mandate Economic and Social Council resolution 2004/69 of 11 November 2004 mandated the Committee of Experts on International Cooperation in Tax Matters (the Committee) to “keep under review and update as necessary the United Nations Model Double Taxation Convention between Developed and Developing Countries and the Manual for the Negotiation of Bilateral Tax Treaties between Developed and Developing Countries”. The most recent issue of the Manual was issued as ST/ESA/PAD/SER.E/37. 2 Historical background From 2005 to 2011, work on updating the Manual was undertaken by the first Subcommittee on a Manual for the Negotiation of Tax Treaties. 3 In order to broaden this work and to ensure that it responds to the needs of developing countries, the Committee, at its eighth ses- sion (Geneva, 15 – 19 October 2012), 4 requested the secretariat “to seek additional resources to advance the work” in this area. Accordingly, a number of initiatives have been undertaken by the Financing for Development Office (FfDO) of the United Nations Department of Economic and Social Affairs (UN-DESA). The work was launched at an expert group meeting on “Tax Treaty Negotiation and Capacity Development” (New York, 13 and 14 December 2012), and benefited from the participation of several members of the Committee, as well as former and present treaty 2 Available at http://www.un.org/esa/ffd/wp-content/uploads/2014/09/ UNPAN008579.pdf. 3 The mandate and composition of the former Subcommittee is availa- ble at http://www.un.org/esa/ffd/tax-committee/tc-psubcommittee-tax-trea ties.html. 4 The report of the eighth session is available at http://www.un.org/esa/ ffd/events/eighth-session-tax.html. v Manual for the Negotiation of Bilateral Tax Treaties negotiators from developed and developing countries. The goal of the meeting was to analyse existing tools available to developing coun- tries and assess the most effective resources needed to strengthen their capacity to negotiate tax treaties. One of the proposals resulting from the meeting was to draft a series of practical papers on relevant issues in tax treaty negotiation from the perspective of developing countries. The draft papers were presented with a view to seeking feedback from developing countries during a technical meeting on “Capacity Building on Tax Treaty Negotiation and Administration” (Rome, 28 and 29 January 2013). 5 Further discussion among 32 representa- tives from developing countries, who attended a technical meeting on “Tax Treaty Administration and Negotiation” (New York, 30 and 31 May 2013), 6 led to the publication of these papers as Papers on Selected Topics in Negotiation of Tax Treaties for Developing Countries 7 (the Papers). This collection of papers was then presented to the ninth session of the Committee (Geneva, 21 – 25 October 2013), 8 as a possi- ble input into the work of the Committee in this area. Recent work On that occasion, the Committee decided to establish a Subcommittee on Negotiation of Tax Treaties—Practical Issues (the Subcommittee), 9 comprising the following Members: Mr. Wolfgang Lasars (Coordinator) (Germany); Mr. Mohammed Baina (Morocco); Mr. El Hadji Ibrahima Diop (Senegal); Ms. Liselott Kana (Chile); Mr. Cezary Krysiak (Poland); Ms. Carmel Peters (New Zealand); and Mr. Ulvi Yusifov (Azerbaijan). 5 The report of the meeting is available at http://www.un.org/esa/ ffd/events/event/meetings-on-capacity-building-on-tax-treaty-negotia- tion-and-administration.html. 6 Available at http://www.un.org/esa/ffd/events/event/technical-meet- ing-on-tax-treaty-administration-and-negotiation.html. 7 Available at http://www.un.org/esa/ffd/publications/papers-ntt.html. 8 The report of the ninth session is available at http://www.un.org/esa/ffd/ events/ninth-session-tax.html. 9 The mandate of the Subcommittee is available at http://www.un.org/ esa/ffd/uncategorized/tc-subcommittee-tax-treaties.html. vi Introduction The Subcommittee was mandated to develop a practical manual on the negotiation of bilateral tax treaties informed by the following principles: ¾ That it be a compact practical training tool for beginners or tax officials with limited experience and reflect the realities for devel- oping countries at their relevant stages of capacity development. ¾ That it reflect the current version of the United Nations Model Convention 10 and the relevant Commentaries thereon, as well as ongoing decisions of the Committee leading to changes
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